United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
Jim Harris filed this lawsuit pro se against prison
nurse practitioner defendant Nina Hill. Defendant Hill moved
for summary judgment (#72). Plaintiff filed a response
memorandum (#82) and a response to Hill's statement of
facts (#83) followed by a “Motion to Allow Doc. #83 and
#82 to Remain As Submitted to this Court” (#87).
Defendant filed a reply memorandum in support of summary
judgment (#88). Plaintiff then filed a surreply (#89).
Defendant filed a motion to strike (#90) the surreply.
Plaintiff did not respond to defendant's motion to
entered the Missouri Department of Corrections
(“MDOC”)'s Eastern Reception, Diagnostic, and
Correctional Center (“ERDCC”) on July 13, 2012.
Nonparty Advanced Nurse Practitioner Duhadway assigned
plaintiff to “M-2 Status, ” which required that
plaintiff be assigned to a location where he could have
16-hour nursing staff. Level M-1 status would have indicated
plaintiff had no treatment needs. Duhadway appears to have
assigned plaintiff a “lay-in” or medical
restriction to the use of a lower bunk. Notably, the
“Lay-In/Restriction History” report shows the
lower bunk restriction with a “Begin Date” of
July 20, 2012 (just after plaintiff entered ERDCC) and an
“End Date” six months later on January 20,
2013. The report also includes a column for
“Discontinue Date, ” which is marked 00/00/0000
for the lower bunk restriction. For reasons that are not
entirely clear, MDOC assigned plaintiff to a custody duty
status of “Cardiac History - Lower Bunk.”
Although the medical lay-in for lower bunch expired on
January 20, 2013, it appears that MDOC --- which is an entity
separate from the individuals and the company that provide
health services to inmates --- continued to include
“Cardiac History - Lower Bunk” as plaintiff's
“custody status.” That custody status cannot be
changed by medical personnel.
has a number of health problems. He was seen periodically in
the Chronic Pain Care Clinic for knee and hip arthritis
(plaintiff disagrees that he is still being treated for those
ailments). He has an old gunshot wound that plaintiff says
resulted in some hand weakness. Although plaintiff suggested
in his complaint that the gunshot resulted in a spinal cord
injury, there is no record evidence to support that
allegation. Further, although one doctor noted some wasting
in the thumb-web of plaintiff's right hand, plaintiff has
not been diagnosed with thumb weakness. Plaintiff was
diagnosed with degenerative joint disease on January 22, 2013
and was ordered for no prolonged standing or running.
Plaintiff also had a non-union of a fracture in his jaw which
affected his eating, so non-party Nurse Practitioner Graham
renewed lay-ins on May 21, 2015 for “extra time to eat,
early main line, [and] no peanut butter.” On June 15,
2015, plaintiff saw defendant Nurse Practitioner Hill as a
followup to the May 21 appointment. Plaintiff reported that
the medications were helping and his pain had “lessened
significantly.” Thus, on June 18, Hill sent an order
recorded by nonparty Nurse Lizenbee to discontinue the lay-in
for “early mainline, no peanut butter and for extra
time to eat.”
lay-in is recorded on the Lay-In/Restriction History report.
Its Begin Date is May 21, 2015 and its End Date is a year
later, May 21, 2016. The “Discontinue Date” is
June 18, 2015, which comports with the medical records that
show that the lay-in was discontinued by defendant Hill.
November 2, 2015, plaintiff complained to nonparty Dr. Massey
that his bottom bunk lay-in had been taken away. A few days
later, plaintiff says he fell from his bunk and injured
himself such that he was unable to walk. He was treated for
his complaints by Hill and by other nonparty medical staff.
work history with the prison shows that he has worked as a
gardener at SECC starting in June 2014. By November, he had
worked 99 hours in that position. By July 2015, plaintiff had
worked an additional 120 hours. Plaintiff adds that he was a
supervisor and “only instructed guys on their
labor” in that role.
filed this lawsuit on April 15, 2016. He claims that
defendant Hill violated his Eighth Amendment right to be free
from cruel and unusual punishment when she cancelled his
bottom bunk lay-in. Because plaintiff filed the lawsuit
in forma pauperis, this Court reviewed the complaint
for frivolity under 28 U.S.C. § 1915. Although the
plaintiff had three “strikes” under 28 U.S.C.
§ 1915(g) because he had filed three frivolous suits in
the past, the Court found that plaintiff had shown that he
was in “imminent risk of serious physical harm”
and concluded that granting in forma pauperis status
was appropriate. (#9 at 1 n.1.) Notably, the Court based that
decision on plaintiff's allegations that his bottom bunk
lay-in had been cancelled despite his “handicap,
” which was due to “a gunshot injury to his
cervical spine, nerve damage, and muscle loss.”
(Id. at 2.) As indicated above, it appears that the
gunshot wound did not cause damage to his spine.
Hill has moved for summary judgment.
Motion for Summary Judgment
to Rule 56(c), a district court may grant a motion for
summary judgment if all of the information before the court
demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as
a matter of law.” Poller v. Columbia Broadcasting
System, Inc., 368 U.S. 464, 467 (1962). The burden is on
the moving party. Mt. Pleasant, 838 F.2d at 273.
After the moving party discharges this burden, the nonmoving
party must do more than show that there is some doubt as to
the facts. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party bears the burden of setting forth specific
facts showing that there is sufficient evidence in its favor
to allow a jury to return a verdict for it. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
ruling on a motion for summary judgment, the court must
review the facts in a light most favorable to the party
opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts.
Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The Court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson
Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210
(8th Cir. 1976). However, the nonmoving party's
allegations must be supported by sufficient probative
evidence that would permit a finding in his favor on more
than mere speculation, conjecture, or fantasy. Mann v.
Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th
claims defendant Hill violated his Eighth Amendment rights
under the United States Constitution. To establish a such a
violation under these circumstances, plaintiff must show
defendant was deliberately indifferent to the plaintiff's
serious medical needs. Vaughn v. Gray, 557 F.3d 904,
908 (8th Cir. 2009). “Deliberate indifference has both
an objective and a subjective component.” Butler v.
Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). The
objective component requires a plaintiff to demonstrate an
objectively serious medical need. Grayson v. Ross,
454 F.3d 802, 808-09 (8th Cir. 2006). A “serious
medical need” is one “that has been diagnosed by
a physician as requiring treatment or one that is so obvious
that even a lay ...